Authored by Joyann Obeng, with contributions from Lais Pinheiro.

1.0 Introduction 

A few months ago, Nigerian media personality Ifedayo Agoro sparked debate online when she stated that, despite having no fertility challenges, she would still choose surrogacy as her preferred means of reproduction. While some netizens agreed with her perspective, many others criticised her. Interestingly, in South Africa, this is completely outlawed by section 295 of the Children’s Act, 2005 (Act 38 of 2005). The section is to the effect that a court may not confirm a surrogate motherhood agreement unless the commissioning parent or parents are not able to give birth to a child and that the condition is permanent and irreversible, among other requirements. Ms. Agoro’s remarks raise critical questions on the ethical, cultural, and legal dimensions of surrogacy in Africa and beyond.

It is within this broader discourse that the present article is situated. Prompted by Ms. Agoro’s remarks and by Ghana’s own rising engagement with surrogacy as evidenced by TV3’s 2024 documentary[i], the article examines the ethics of commercial surrogacy, a practice on which Ghanaian law remains silent. Globally, the practice is expanding.  In 2024, the surrogacy market was valued at USD 194.0 million and is projected to grow to USD 321.4 million by 2033[ii]. The article compares legal approaches in the United Kingdom, South Africa, Brazil and India, and concludes with a call for clear and comprehensive legislation on surrogacy in Ghana. Rather than adopting a definitive “yes” or “no” stance, it explores and analyses the ethical tensions that commercial surrogacy presents.

2.0 Ghana 

2.1 Registration of Birth and Deaths Act, 2020 (Act 1027) 

2.2 Definition of Surrogacy

Section 48 of Act 1027 defines surrogacy as an arrangement where (a) an embryo formed from an egg and sperm of persons other than a surrogate mother and the partner or husband of that surrogate mother is implanted into the surrogate mother, or (b) a gamete from a person other than the partner or husband of a surrogate mother is introduced into the surrogate mother to fertilise the egg of that surrogate mother, to enable the surrogate mother carry the foetus for the period of the pregnancy and give birth at the end of the period on behalf of another woman or the intended parent. Building on this definition, section 22 of Act 1027 outlines procedures for recognising parentage in surrogacy arrangements, both before and after birth. However, while it clarifies the legal process of registering and transferring parental rights, it remains silent on whether surrogacy in Ghana should be commercial or altruistic, leaving the question of payment or compensation unresolved.

3.0 Commercial and Altruistic Surrogacy 

Van Zyl and Walker (2013)[iii] explain that surrogacy is generally categorised into “commercial” and “altruistic” forms. Altruistic surrogacy is based on a “gift relationship,” motivated by love or altruism, in which a woman—often a close friend or relative—agrees to have a child for an infertile couple. By contrast, commercial surrogacy is modelled on a business relationship, where both parties are (or are expected to be) motivated by personal gain to enter into a legally enforceable agreement, stipulating that the contract mother is to bear a child for the intending (or “commissioning”) parents in exchange for a fee.

4.0 Pro-Commercialisation Perspectives 

4.1 A viable path to parenthood

Commercial surrogacy offers infertile couples and individuals a practical route to parenthood. It creates opportunity for those unable to conceive naturally to have a biological child, providing both hope and fulfilment. With proper regulation, it could serve as a fair and transparent solution to the challenges of infertility.

4.2 Autonomy and Fair Value

Women should have the right to make autonomous decisions about their bodies, including the choice to act as surrogates and being compensated for surrogacy. Commercialisation, when properly regulated, not only upholds women’s freedom of choice but also ensures fair compensation for the physical, emotional, and health risks involved in surrogacy. This approach curbs exploitation by discouraging illicit arrangements, popularly called black markets, and recognises the true value of women’s contributions.

4.3 Transparency Through Regulation

Commercialising surrogacy within a transparent legal framework would protect the rights of all parties—the surrogate, the intended parents, and the child. Such regulation would also help build public trust and enhance Ghana’s international credibility in surrogacy markets, allowing the practice to operate within clear and enforceable rules.

 4.4 Economic Opportunities

When regulated, it may contribute to economic development by creating opportunities for medical tourism and specialised reproductive health services. Evidently, surrogacy is a source of income for women who may otherwise have limited economic opportunities.

5.0 COUNTER-COMMERCIALISATION PERSPECTIVES

5.1 Commodification of Women and Children

Critics argue that surrogacy risks turning women’s bodies and children into commodities. This concern is particularly acute in commercial arrangements, where surrogates may be valued primarily for their reproductive capacity. Such treatment raises serious moral questions about human dignity.

5.2 Exploitation and Inequality

A key ethical issue is whether surrogates—who are often women from poorer backgrounds—are exploited by wealthier commissioning parents. The imbalance in bargaining power between the parties makes it difficult to determine whether consent is genuinely free and informed, or whether it is driven by economic vulnerability.

5.3 The Best Interests of the Child

Critics ask whether it is right to bring a child into circumstances where parentage may be contested. Concerns also arise around the child’s identity, their right to know their genetic origins, and potential psychological implications of being born from such arrangements, contravening Article 8 of the UN Convention on the Rights of the Child (1989), which Ghana is a signatory to.

Consistent with this, Article 3 of the UN Convention on the Rights of the Child (1989) requires that in all matters affecting children, their best interests must be of primary consideration, with the state ensuring necessary protection, care, and standards in child welfare institutions.

5.4 Globalisation and Cross-Border Surrogacy

Reproductive tourism, also referred to as cross-border reproductive care, presents complex legal, ethical, and risk-management challenges. Many commissioning parents travel to countries with less stringent regulations and lower costs, a practice that heightens the risks of exploitation of women, encourages the development of ‘baby markets,’ and creates legal uncertainties over parentage and citizenship.

5.5 Religious, Cultural and Ethical Perspectives

In 2024, Pope Francis, while addressing ambassadors at the Vatican, strongly condemned surrogacy as a grave violation of the dignity of women and children, stressing that it exploits women’s financial vulnerability and reduces children to commodities. He called for a universal ban on the practice, insisting that human life, including that of the unborn, must always be respected and protected.[iv] His remarks reflect broader religious and cultural perspectives that shape ethical debates on surrogacy. While traditions such as Catholicism reject it outright on the basis of natural law and the sanctity of marriage, others are more accepting of altruistic surrogacy, framing it as an act of compassion and service—often drawing parallels to the account of Abraham and Hagar in Genesis 16:1–2.

5.6 The Incalculable Value of Pregnancy and Childbirth

Critics of commercial surrogacy argue that pregnancy is a complex physical and emotional journey that cannot be reduced to a simple transaction. Women endure months of physical strain, including nausea, fatigue, hormonal changes, and the risks of complications such as gestational diabetes or preeclampsia. Beyond childbirth, post-pregnancy recovery could bring further challenges—pain, hormonal imbalances, emotional vulnerability, and in some cases, postnatal depression. Since these experiences profoundly affect a woman’s body and wellbeing, critics insist that no amount of money can adequately compensate for or reflect the true value of bringing a human life into the world.

5.7 Human Trafficking Risks

Commercial surrogacy could create a market where children and women are exploited for profit. In unregulated environments, the practice may blur the line between legitimate reproductive arrangements and child trafficking. Women, particularly those in vulnerable economic positions, risk being coerced into surrogacy. In accordance with Article 35 of the UN Convention on the Rights of the Child (1989), states are to prevent any sale or trafficking of children.

6.0 JURISDICTIONAL COMPARISONS

6.1 South Africa

In South Africa, surrogacy is purely altruistic. Section 295(c)(iv) and (v) of the Children’s Act, 2005 (Act 38 of 2005) provides that a court may not confirm a surrogate motherhood agreement unless the surrogate mother is not using surrogacy as a source of income and has entered into the agreement solely for altruistic reasons, and not for commercial purposes.

Furthermore, under section 301 of Act 38 of 2005, paying or receiving money for surrogacy is generally prohibited. The only payments allowed are for the surrogate mother’s direct medical and pregnancy-related expenses, loss of earnings due to the pregnancy, insurance covering risks of disability or death, and reasonable fees for professional legal or medical services linked to the surrogacy agreement. Any other compensation or reward is unenforceable.

6.2 Brazil

In Brazil, commercial surrogacy is prohibited under both the Constitution, 1988, as amended (by inference)  and medical regulations. Article 199(4) of the Constitution, 1998,  forbids the commercialisation of human organs, tissues, and substances, and by extension, paid surrogacy is deemed unconstitutional and unethical. Similarly, the Federal Council of Medicine (“CFM”) in Resolution 2.320/2022, makes clear that the temporary donation of a uterus cannot have a lucrative or commercial character.

In accordance with CFM Resolution No. 2.320/2022, the surrogate must be medically and psychologically fit and already have a child; the surrogate must be a close relative of one of the intended parents, otherwise CRM approval is required; and also that strict documentation and consent procedures ensure the child’s legal parentage and the surrogate’s protection.

6.3 United Kingdom

According to section 2 of the Surrogacy Arrangements Act 1985 (UK), surrogacy is only permitted on an altruistic basis, as the law strictly prohibits commercial surrogacy. This means that no one is allowed to profit from negotiating, arranging, or compiling information for surrogacy arrangements. It is a criminal offence to initiate, offer, or take part in such negotiations on a commercial basis, and this extends to organisations or individuals who might facilitate these processes for payment.

However, the law does make important exceptions. A woman who wishes to become a surrogate is free to take steps to do so, and intended parents may also lawfully make arrangements with a surrogate to carry a child for them. Payments directly to surrogates are allowed, but only to cover reasonable expenses, such as medical costs, maternity clothing, or loss of earnings. These payments cannot extend into profit, ensuring that surrogacy remains altruistic rather than commercialised.

Non-profit organisations are permitted to assist in surrogacy arrangements, but their involvement is limited to cost recovery. They may provide support and facilitate arrangements as long as any payments received are only to cover reasonable expenses and not to generate profit. Where an organisation or individual breaches these restrictions and engages in commercial surrogacy, both the entity and those managing or controlling it could be found guilty of an offence.

Essentially, in the UK, surrogacy is allowed; however, it is strictly controlled to protect the surrogate mother and the child from exploitation.

6.4 INDIA

For many years, India was a major hub for commercial surrogacy, attracting clients from around the world due to lower costs, advanced medical facilities, and the availability of surrogate mothers. The country’s limited regulation at the time made it a leading destination for international surrogacy. Landmark cases such as Baby Manji Yamada v. Union of India(2008) and Jan Balaz v. Anand Municipality (2009) illustrate how foreign nationals, including Japanese and German citizens, engaged in surrogacy arrangements in India. Today, however, surrogacy in India is regulated under the Surrogacy (Regulation) Act, 2021.

The Act was enacted to curb unethical practices and safeguard the rights of surrogate mothers and children born through surrogacy (Vyas, 2025)[v]. The Act mandates the establishment of a National Assisted Reproductive Technology and Surrogacy Board, State Assisted Reproductive Technology and Surrogacy Boards and appoints appropriate authorities to regulate the practice and process of surrogacy.

Only altruistic surrogacy is permitted under the Act. This means the surrogate mother cannot receive monetary compensation other than medical expenses and insurance coverage.

7.0 CONCLUSION

This article assesses the ethics of surrogacy and calls for clearer, more comprehensive legislation on the subject. While legalities may not fully resolve the ethical dilemmas surrounding surrogacy, they represent an important step forward.Ethical scrutiny must therefore move beyond compliance with legal rules to address deeper questions of justice and humanity. Ultimately, the issue is whether Ghana should adopt clearer and comprehensive legislation that safeguards the rights and dignity of all parties, or instead take a more restrictive stance by prohibiting commercial surrogacy altogether.”

[i] https://web.facebook.com/watch/?v=309116428823725

[ii] https://www.openpr.com/news/4028084/surrogacy-market-size-share-forecast-report-2025-2033

[iii] van Zyl, Liezl, and Ruth Walker. 2013. Beyond altruistic and commercial contract motherhood: The professional model. Bioethics 27 (7): 373–381. https://onlinelibrary.wiley.com/doi/10.1111/j.1467-8519.2012.01962.x

[iv] https://catholicreview.org/churchs-surrogacy-teaching-rooted-in-the-primacy-of-the-rights-of-the-child/

[v] Varsha D. Vyas, Surrogacy Law in India: An Overview, Indian Journal of Legal Review (IJLR), 5(2), 2025, pp. 40–42, APIS – 3920 – 0001 & ISSN 2583-2344